Elmar Mammadyarov: ECHR decision put an end to Armenia’s denial of its military presence in the territories of Azerbaijan

Elmar Mammadyarov: ECHR decision put an end to Armenia’s denial of its military presence in the territories of Azerbaijan

7 July, 2015 13:37

Baku. 7 July. REPORT.AZ/ Minister of Foreign Affairs of Azerbaijan, Elmar Mammadyarov’s interview to AZERTAC. Report informs, the Minister commented on judgement of European Court on Human Rights on the case of Chiragov and others v. Armenia, as well other issues as below:

- On 16 June 2015, the Grand Chamber of the European Court of Human Rights (ECHR) announced its judgment (Merits) on the case of Chiragov and others v. Armenia. At the outset, could you please provide some general background information on this case?

- As you know, the case that you are referring to originated in an application against the Republic of Armenia lodged with the ECHR on 6 April 2005 by six Azerbaijani nationals, who were forcibly expelled from the occupied Lachin district of Azerbaijan during the Armenian aggression. In essence, the applicants submitted to the Court that they were prevented from returning to their homes in the Lachin district and were thus unable to enjoy their properties located there due to continuing occupation of the district of Lachin by the armed forces of Armenia. They submitted that this amounted to continuing violations of their property rights, guaranteed under Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 8 of the Convention that protects the right to respect for private and family life. They also submitted that there was a violation of Article 13 of the Convention in that no effective remedy was available in respect of the above complaints. Finally, with a view to all complaints set out above, they complained that they were subjected to discrimination by virtue of ethnic origin and religious affiliation in violation of Article 14 of the Convention.

- What the general conclusion the Court has arrived at?

- The Court ruled in favor of the applicants, recognizing continuing violations by Armenia of a number of their rights under the Convention. However, the importance of this ruling by an authoritative international court as this one goes beyond that.

- What is in view of the Republic of Azerbaijan the primary significance of this judgment by ECHR?

- The judgment of the Court is indeed significant from a number of angles. First and foremost, ECHR effectively put an end to Armenia’s persistent denial of its responsibility for the unlawful occupation of and military presence in the territories of Azerbaijan. As is known, since the beginning of Armenian aggression and in the course of the Court’s proceedings in this case, in its usual attempts to mislead the international community and distort the root causes and essence of the conflict, the Republic of Armenia alleged that its jurisdiction did not extend to the territory of Nagorno-Karabakh and the surrounding territories; that it did not and could not have effective control of or exercise any public power on those territories; that it had not participated in the military conflict in question; that it had not taken part in the seizure of the Lachin district and in any later military actions; and that it did not have any military presence in Nagorno-Karabakh and the surrounding territories.

The Court, having examined the evidence presented to it by the applicants and the Government of Azerbaijan rejected all these allegations submitted by Armenia.

Furthermore, in paragraphs 14-18 of the judgment, ECHR noted in particular, that the war had started with calls for the incorporation of Nagorno-Karabakh into Armenia and specifically referred in that regard to a joint resolution on the “reunification” adopted in December 1989 by the Supreme Soviet of the Armenian SSR and the Nagorno-Karabakh regional council. Essentially, the Court confirmed that Armenia’s territorial claims and its attempts aimed at annexation of a part of the territory of Azerbaijan were the root cause of this armed conflict and triggered a full-fledged war.

In paragraph 180, the Court also confirmed, and I am quoting the judgment here, that “the Republic of Armenia, through its military presence and the provision of military equipment and expertise, has been significantly involved in the Nagorno-Karabakh conflict from an early date”, that “[t]his military support has been – and continues to be – decisive for the conquest of and continued control over the territories in issue” and that “…the evidence … convincingly shows that the armed forces of Armenia and the ‘NKR’ are highly integrated”. Based on this and other evidence testifying to the political, financial and other dependence of the separatist entity from Armenia, the Court in paragraph 186 concluded that “… the Republic of Armenia, from the early days of the Nagorno-Karabakh conflict, has had a significant and decisive influence over the ‘NKR’, that the two entities are highly integrated in virtually all important matters and that this situation persists to this day” and that “the ‘NKR’ and its administration survives by virtue of the military, political, financial and other support given to it by Armenia which, consequently, exercises effective control over Nagorno-Karabakh and the surrounding territories, including the district of Lachin”.

- Despite of this unequivocal judgment of the Court, the Armenian side still asserts that Armenia does not occupy the territories of Azerbaijan and that there is nothing in this judgment of the Court that would testify the opposite. Armenia also claimed that this judgment applies only to the protection of the rights pertaining to the European Convention on Human Rights. What would be your reaction to these statements?

- It is unfortunate that Armenia, instead of drawing long overdue conclusions and embarking on a constructive path in the negotiations, sticks to its usual pattern of denial of undeniable with the sole purpose of misleading the international community and covering up its policy of occupation. Indeed, these allegations cannot be further from the truth. In order to refute these groundless speculations, suffice it to just read carefully the judgment, including in particular the paragraphs that I have just quoted.

The Court, referring to its case-law, observed that occupation within the meaning of international law exists when a State exercises actual authority over the territory or part of the territory of another State. In the Court’s view, the requirement of actual authority is widely considered to be synonymous to that of effective control. Consequently, having examined the evidence presented, the Court concluded that Armenia exercised and continues to exercise effective control over the Nagorno-Karabakh and other occupied territories as a consequence of military occupation of these territories (paragraphs 96 and 168).

In contrast to what the Armenian officials assert, the Court arrived at an important conclusion that Nagorno-Karabakh, the district of Lachin and the other surrounding districts are part of Azerbaijan now under military occupation (paragraphs 146 and 173), that the international law of belligerent occupation/international humanitarian law applies in a given situation (paragraphs 96-97) and that Armenia is an occupier of the occupied territories of Azerbaijan and exercises effective control over those territories as these terms are understood under international law. Thus, the fact of occupation and effective control of the territories of Azerbaijan by Armenia is undisputed. The Court simply confirmed what has long ago been a matter of general repute and public knowledge internationally.

- During the Court proceedings, as evidenced from the judgment, it appears that the Armenian side tried to justify the invasion, destruction and burning of Lachin and forcing of the Azerbaijani population to flee by “self-defense” and the “need to deliver food, medicine and other supplies into Nagorno-Karabakh”. The Armenian side claims that the Court took note, and I would like to quote them on that, “that in the situation of the ‘Azerbaijani aggression’ the ‘liberation’ of Lachin had a vital importance for the survival of the population of Nagorno-Karabakh”. Did the Court make such controversial statements?

- Obviously, sense of impunity of Armenia encourages it to solidify its notorious track-record of falsifying and distorting the facts on the ground and the documents of international organisations. These allegations are nothing more than another piece of blatant lie. Armenia even does not shy away from brazenly attempting to manipulate the judgment of such a prominent institution as ECHR in broad daylight. There is no reference to “Azerbaijani aggression” or “liberation of Lachin” whatsoever in the judgment. I would simply invite all interested to consult the judgment of the Court which is available online. In fact, the Court rejected all the Armenian arguments that were designed to justify armed attacks and mass forcible expulsion of the civilians by ‘military necessity’

What is worrisome is the dangerous attempts of Armenia to justify its internationally wrongful acts by farfetched reasons. This is unacceptable and may seriously undermine the international efforts to protect universally recognized human rights norms guaranteed by the Convention and may compromise the Convention’s role as a constitutional instrument of European public order. The international community should be firm in rejecting such irresponsible attitude to the Convention and to ECHR.

- What was the assessment of the Court of the circumstances under which the Azerbaijani population of Lachin was forced to leave their homes?

-Of particular importance is the determination by the Court, in paragraphs 19-20, that the district of Lachin, in particular the town of Lachin, was under military attack; that in mid-May 1992, Lachin was subjected to aerial bombardment, in the course of which many houses were destroyed; that the town was looted and burned; that Lachin and the surrounding villages were completely destroyed during the military conflict. The Court thus confirmed that the intension of the Armenian side was to inflict as much damage and sufferings as possible to the Azerbaijani population, forcing it to flee for their lives. We remember that the OSCE officials who visited the conflict area back in 1992-1993, condemned as unacceptable the Armenian side’s ‘scourged earth’ tactics, as they put it in their own words that very much resembled the notorious practice of ethnic cleansing.

One should also recall that military operation against the town of Khojaly in the Nagorno-Karabakh region of Azerbaijan, which was recorded in the history as the largest single day massacre of the Azerbaijani population in the course of the conflict, and attack on Lachin and subsequent invasion and occupation of the district of Kelbajar that were carried out with direct involvement of the armed forces of Armenia, elicited a series of well-known U.N. Security Council resolutions.

In this regard, one should recall that invasion and attack by the armed forces of a State of the territory of another State, or military occupation however temporary, resulting from such invasion or attack, as well as bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State are the most egregious manifestations of aggression, as per 1974 consensus definition of the UN General Assembly. Undeniably, military attacks by the Armenian and Armenian-backed troops against Lachin and other towns and villages of Azerbaijan and aerial bombardments, as was confirmed by the Court, constitute armed attacks, triggering the right of self-defense of Azerbaijan in accordance with Article 51 of the UN Charter and customary international law that solidifies once and for all.

- After the announcement of the judgment, the Armenian side made a number of contradictory statements. While the deputy minister of justice and authorized representative of Armenia in ECHR, Emil Babayan stated on 13 June that the Court’s ruling may have political and geopolitical implications and that any ruling will inevitably have its impact on the peaceful settlement of the conflict and the negotiations process, Foreign Minister Edward Nalbandian in his recent comments asserted that this ruling of ECHR on the Chiragov case cannot have any impact on the negotiation process. What is, in your view, behind these conflicting messages coming from Yerevan and could you please elaborate on the potential impact of the judgment on the negotiation process?

- Obviously, as was expected, the judgment created a shock wave throughout Armenia. The conflicting statements indicate that the Armenian side is worried about this unprecedented judgement of the Court and its inevitable far-reaching implications.

As I noted, this ruling by ECHR is significant in many respects. This is the first judgment of an authoritative Court that, while considering the merits of the case, provided impartial, third party analysis of the situation and legal assessment of the circumstances that led to the violation of fundamental human rights of Azerbaijani citizens guaranteed under the Convention.

In particular, the Court reaffirmed the right of displaced persons to return to their homes or places of habitual residence and recalled the relevant standards and principles of international humanitarian and human rights law relating to the legal and technical issues surrounding housing and property restitution. In this context, in the Court’s view, as reflected inparagraph 195 of the judgment, continued presence of Armenian and Armenian-backed troops and ceasefire breaches is the major obstacle for the Azerbaijanis to return to their homes in the current circumstances.

From day one Azerbaijan has been saying that continued illegal presence of the armed forces of Armenia in the occupied territories is the major threat to regional peace and the obstacle for the conflict resolution. The Court essentially concurred with the position of Azerbaijan that the withdrawal of Armenian troops is a sine qua non condition for the protection of the rights of the Azerbaijani citizens under the Convention and more broadly for the conflict resolution.

Furthermore, for us the return of the Azerbaijani population to their homes in the Nagorno-Karabakh region and the surrounding territories that are now under occupation is one of the most important, and, I would say, existential issue. Armenia, on the contrary, always tried to prevent or condition the return of the Azerbaijani population to their homes. The Court made it clear that the ongoing negotiations within the OSCE Minsk Group do not provide a legal justification for the interference with the rights of the Azerbaijani internally displaced persons, including the proprietary rights that are still valid, and recalled Armenia’s obligations towards Azerbaijani citizens who had to flee during the conflict. According to the Court (paragraph 148 of the judgment), attempts of the Armenian side to extinguish the land rights of the Azerbaijani displaced persons who had fled the occupied territories cannot be considered legally valid. Having found the violation by Armenia of the rights of the Azerbaijani internally displaced persons, the Court concluded that Armenia had failed to discharge the burden of proving the availability to the applicants of a remedy capable of providing redress in respect of their Convention complaints and offering reasonable prospects of success. For the same reasons, the Court found that there was no available effective remedy in respect of the denial of access to the applicants’ possessions and homes in the district of Lachin.

The ruling of the Court reaffirmed that the right to return of the Azerbaijani population is undisputed and any solution will have to ensure effective exercise of this right.

What should not be overlooked is that the said judgment of the Court’s Grand Chamber is final and legally binding. The Council of Europe has a well-established mechanism to monitor the implementation of the Court’s decisions. After the judgment of ECHR, the issue of protection of the rights of Azerbaijani population expelled from the occupied Nagorno-Karabakh and the other surrounding territories shall remain on the radar screen of the Council of Europe and its structures.

-In the context of impact of this ruling on the negotiation process, what international responsibilities of Armenia are derived from this judgment?

-The major conclusion from the Court’s judgment must be that due to its initial and continuing aggression against Azerbaijan and military occupation of its internationally recognized territory, expulsion of hundreds of thousands of the citizens of Azerbaijan from the occupied territory and the denial of their return to their homes and access to their property in those areas, the Republic of Armenia bears full international responsibility for the breaches of international law that have occurred and continue to occur.

A key element of State responsibility, and one particularly significant for present purposes, is the obligation to cease violations, to offer appropriate assurances and guarantees that they will not recur and to provide full reparation for injury. Consequently, Armenia is under the obligation, in the first place, to put an end to the occupation of the territories of Azerbaijan and to withdraw immediately, completely and unconditionally its armed forces from these territories. The implementation of that obligation, which would create necessary conditions for the return of Azerbaijani internally displaced persons, can in no way be considered or introduced as a compromise and used as a ‘bargaining chip’ in the conflict settlement process.

- What was the position of the Court on the illegal regime established by Armenia in the occupied territories?

-During the Court proceedings, Armenia asserted that “the ‘NKR’ was a sovereign, independent state possessing all the characteristics of an independent state under international law”; that “it exercised control and jurisdiction over Nagorno-Karabakh and the territories surrounding it”; that “the Republic of Armenia and the ‘NKR’ were different countries”, and that “the ‘NKR’, since its formation, had carried out its political, social and financial policies independently”.

The Court having considered the evidence presented, rejected these allegations and confirmed in paragraph 148 its conclusion from the admissibility decision of 14 December 2011, according to which “the ‘NKR’ is not recognized as a State under international law” and reaffirmed in paragraph 28 that “self-proclaimed independence of the “NKR” has not been recognised by any State or international organization”, thus reiterating the position of the international community that overwhelmingly rejected this entity and refused to recognise as legitimate the situation created through the use of force against the territorial integrity of Azerbaijan, accompanied by the notorious practice of ethnic cleansing and other flagrant violations of the peremptory norms of international law. Moreover, the Court made it clear that the separatist regime is totally dependent on Armenia and “survives by virtue of the military, political, financial and other support given to it by Armenia” (para 186).

- What consequences for other States arise in light of the ruling of the Court?

-The Court in its judgment made specific references to the relevant international humanitarian law instruments dealing with the military occupation and ruled that they apply in the present case. Serious breaches of obligations under peremptory norms of general international law, and Armenia violated a number of such norms, give rise to additional consequences affecting not only Armenia, but also all other States, which include, inter alia, duties of States to cooperate in order to bring to an end such breaches by lawful means and not to recognize as lawful a situation created by a serious breach, nor render aid or assistance in maintaining that situation.

It is an established principle of general international law that no territorial acquisition resulting from the threat or use of force shall be recognized as legal, as reaffirmed by UN Security Council resolutions 822 (1993), 853 (1993), 874 (1993) and 884 (1993) adopted with regard to the armed conflict in question. This understanding also applies to individual rights and freedoms, the violation of which can in no way produce the outcome that was designed by the perpetrator and that would serve for its benefit.

It is therefore critical that the international community insist on the implementation of the above-mentioned U.N. Security Council resolutions, to which the Court refers extensively in its judgment, that demand the withdrawal of the Armenian occupying forces from the occupied territories of Azerbaijan and support the return of displaced persons to their places of origin in safety and dignity. It is obvious that the judgment of the Court should also guide the OSCE Minsk Group Co-Chairs.

- The Armenian side claims that, in its address at the PACE Summer Session on 22 June, Mr. Igor Crnadak, Chairman of the Committee of Ministers of the Council of Europe and Minister of Foreign Affairs of Bosnia and Herzegovina, allegedly confirmed that the conflict settlement process runs within the framework of the Minsk Group Co-chairs and has nothing to do with the mentioned judgments of ECHR. How would you comment this statement?

- The Armenian side’s allegations are yet another falsification. The video-recording of Mr. Crnadak’s remarks is available online. In reality, in response to a question on the implementation of the Court’s decision, Mr. Crnadak said, and I quote him here, that “[t]he Committee of Ministers will commence the supervision of the execution of these judgments and certainly the Chairmanship will be very much focused on this and this will be important for us.” He also said that “[e]xecution of the Court judgment is the obligation under article 46 of the European Convention on Human Rights and should go hand in hand with continuing efforts to establish an overall peace settlement”. The Armenian side is also inaccurately paraphrases Mr. Crnadak’s statement on the mediation efforts. Mr. Crnadak noted that “[m]ediation for the settlement of the conflict is the responsibility of the OSCE Minsk Group”. It is irresponsible, to say the least, to put words into the mouth of such high-ranking official of the Council of Europe.

- The Armenian side claims that there are certain formulations in the Sargsyan vs. Azerbaijan case that makeAzerbaijan to refrain from reacting to this case. Is this the case and what is the reaction of Azerbaijan vis-à-vis this judgment of the Court?

-First, we were never approached for the comment on this particular case. But, I will gladly satisfy the curiosity of our Armenian colleagues. As you may know, when Azerbaijani applicants lodged the case with ECHR on the violation of their rights under the Convention, as is always the case, Armenia followed the suit and made an Armenian national, certain Minas Sargsyan, to lodge with the Court a similar complaint in 2006 in an effort to mitigate the fall-out from the unprecedented consideration by ECHR of the violation of the fundamental rights of Azerbaijani IDPs on a massive scale as a result of occupation of the territories of Azerbaijan by Armenia.

In short, the case originated in an application by this applicant who alleged the denial of his right to return to the village of Gulistan in Goranboy district of Azerbaijan and to have access to his property there. I should mention in the outset that in paragraph 218 the Court specifically emphasized that the applicant was not deprived of his rights in respect of the house and land in Gulistan. It continued that the case does not involve a deprivation of property. Nor has it been claimed that the situation complained of was the result of any measures aimed at the control of the use of property.

Now, I cannot emphasize enough that the position of Azerbaijan on the issue of IDPs and refugees has been consistent and has not changed. We are the most interested party in the early return of displaced people to their homes. Population displacement is a direct result of Armenia’s unlawful actions that the Court referred to in the Chiragov case. Indeed, it is Armenia who constantly introduces obstacles and unrealistic conditions to prevent by all means the return of displaced population, in particular to the Nagorno-Karabakh region of Azerbaijan and to consolidate the results of ethnic cleansing carried out on a massive scale. We have consistently stated on numerous occasions that a number of measures, starting with the withdrawal of the Armenian forces, removal of UXOs, rehabilitation of the territories need to be taken to create conditions and to ensure safe and dignified return of the displaced population.

As far as the Sargsyan vs. Azerbaijan case is concerned, there are number of provisions in this judgment that the Armenian side simply downplays and fails to mention because they make them uncomfortable, to say the least. Thus, to the disappointment of Armenia, in paragraphs 215-216 the Court once again observed that the conflict is between Armenia and Azerbaijan. In paragraph 30, the Court noted that former “Shahumyan” district (Goranboy) “was… claimed by the ‘NKR’ as part of its territory”. Having considered the evidence presented, the Court in paragraphs 134 and 139 determined that this district, in which the village Gulistan is situated, is an internationally recognized territory of Azerbaijan, thus rejecting Armenia’s claims. Furthermore, in paragraph 130, the Court reaffirmed that military occupation is temporary in nature and does not result in the transfer of sovereignty.

- The Armenian side, while commenting on the statement by Azerbaijan that the withdrawal of the armed forces of Armenia will ensure conditions conducive to the return of displaced people and that these issues should in no way be considered as a compromise, claimed that Azerbaijan by its ‘arbitrary’ and ‘selective interpretations’ once again opposes the proposals contained in the five statements of the leaders of the OSCE Minsk Group Co-chair countries. The Armenian side also stated that the Co-chairs consider these elements as an integrated whole as any attempt to select some elements over others would make it impossible to achieve a balanced solution”. How would you comment this?

- This is not the first time that the Armenian side distorts the essence of the negotiation process. The position of Azerbaijan on this issue has been repeated in the statement of the Ministry of Foreign Affairs of Azerbaijan of 16 June in the wake of announcement by ECHR of its judgment on Chiragov case. We made it clear that Azerbaijan does not consider the withdrawal of Armenian forces and return of displaced population as a ‘compromise’. The attitude of the Armenian side that you refer to clearly shows who is creating obstacles for the realization of the fundamental rights of IDPs that the Court ordered to be protected.

Furthermore, there is indeed nothing in the proposals of the Co-Chairs that identify the withdrawal of the Armenian forces or return of Azerbaijani IDPs to their homes as a “compromise”. These are key steps without which there will be no settlement. Azerbaijan adheres to the phased approach in the conflict settlement, which is inevitable and has no alternative. The Co-Chairs of the OSCE Minsk Group are aware of this, and their mandate is based on this understanding.

The resolution of the conflict is possible only on the basis of the sovereignty and territorial integrity of Azerbaijan within its internationally recognized borders. The territorial integrity of Azerbaijan has never been and will never be a subject of negotiations. Azerbaijan remains committed to the conflict settlement process based on this understanding.

The statements of the Co-Chairs cannot be a substitute for a comprehensive peace agreement based on international law that Azerbaijan has been proposing to start working on a while ago. Rather than seeking ways to prolong the status-quo of occupation of the territories of Azerbaijan, Armenia must reconsider its unconstructive stance that will be more and more difficult to stick to, especially in light of the recent judgment of ECHR. The sooner Armenia reconciles with the reality, the earlier the conflict will be resolved and the countries and peoples in the region will benefit from the prospects of cooperation and economic development.

Azerbaijan once again calls on the Armenian side, instead of wasting time and misleading its own people and the international community, to cease its policy of annexation and ethnic cleansing and to engage constructively in the conflict settlement process and comply with its international obligations.

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